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Tuesday, May 21, 2013

Prospective Overruling in Bangladesh.

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A
court does not make law, but finds or discovers the true law. It necessarily
follows that a law declared by the court to be invalid becomes invalid from the
time of its enactment. In other words, the judicial pronouncement operates
retrospectively as also prospectively. Retrospective overruling often causes
administrative inconvenience or result in great hardship by disturbing vested
rights acquired on the basis of the rule found invalid. To avoid the situation,
the American Supreme Court developed the doctrine of prospective overruling
whereby a decision of the court operates only in respect of future transaction
and does not affect past and closed transactions. However, prospective
overruling creates a situation where people similarly placed are dealt with
differently simply because of the difference in the time of occurrence. Hence
the court resorts to the doctrine of prospective overruling when the normal retrospectively
not merely creates inconvenience, but results in grave injustice or involves
extremely burdensome sorting out process for courts or administrators. The Indian
Supreme Court applied the doctrine of prospective overruling in the case of
Golak Nath V. Punjab, AIR 1967 SC 1643. In Summon Gupta V. J&K, AIR 1983 SC
1235 the court declared the absolute power of the government to nominate
candidates for admission to medical collage to be violate of the equality
clause, but refused to disturb the existing nominations as the candidates had
already covered a substantial part of the course. In Bangladesh the Appellate
Division while declaring the amendment of Art.100 of the Constitution void in
Anwar Hossain Chowdhury v. Bangladesh ordered “this invalidation, however, will
not affect the pervious operation of the amended Articles and judgments,
decrees, orders etc. rendered or to be rendered and transaction past and
closed.”